Regina v Shankley [2003] NSWCCA 253 revised - 18/09/2003
HEARING DATE(S):
03/09/2003
JUDGMENT DATE:
11 September 2003
JUDGMENT OF:
Greg James J at 1; Howie J at 2; Smart AJ at 41
DECISION:
The appeal is allowed and the sentences imposed by Judge Coolahan is quashed. In respect of the first count, and taking into account the matters on the form 1, the respondent should be sentenced to 8 years imprisonment to date from 9 December 2001. There should be specified a non-parole period of 6 years to expire on 8 December 2007. In respect of the second count and taking into account the matters on the form 1, the respondent should be sentenced to 6 years imprisonment to commence on 9 December 2006. There should be a non-parole period specified in relation to that sentence of 3 years 3 months to expire on 8 March 2010 the date upon which the respondent is eligible to be released to parole.
CATCHWORDS:
Crown appeal against sentence - effect of delay in commencement and hearing of appeal - asserted errors and effect on sentence - whether sentence is manifestly inadequate
2 Howie J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act. On 2 August 2002 the respondent pleaded guilty before Judge Coolahan to an indictment containing two counts: the first, an offence of supplying not less than a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drugs Misuse and Trafficking Act and, the second, an offence of possession of a firearm without being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act. The offence in the first count carried a maximum penalty of 5000 penalty units or imprisonment for life or both, s 33(3)(a) of the Drug Misuse and Trafficking Act.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Shankley [2003] NSWCCA 253
Case
[2003] NSWCCA 253
Decision Date
CaseChat Overview and Summary
In the matter of R v Shankley, the appeal was brought before the High Court of Australia. The appellant, the Crown, sought to appeal against the sentence imposed by the lower court on the respondent, Shankley, who had been convicted of a serious criminal offence. The Crown argued that the sentence was manifestly inadequate and that the delay in commencing and hearing the appeal had not prejudiced Shankley in a way that would make the appeal unjust. The Court was required to determine whether the sentence was indeed manifestly inadequate and whether any delay in the appeal process had any bearing on the outcome.
The primary legal issues before the Court were whether the sentence imposed by the lower court was manifestly inadequate and, if so, whether the delay in the commencement and hearing of the appeal had any prejudicial effect on Shankley. The Court needed to consider the principles governing the review of sentences by appellate courts and the effect of delays in the appeal process. The Court was also required to consider the impact of any errors made by the lower court that might have influenced the sentence.
The Court found that the sentence imposed was indeed manifestly inadequate, taking into account the seriousness of the offence and the circumstances of the case. The Court held that the delay in the commencement and hearing of the appeal did not prejudice Shankley in a manner that would render the appeal unjust. The Court concluded that the appeal should be allowed, and the sentence should be replaced with a more appropriate one. The Court emphasised the importance of ensuring that sentences reflect the gravity of the offence and the need for public confidence in the criminal justice system.
In light of the findings, the Court ordered that the sentence imposed by the lower court be set aside and that Shankley be re-sentenced. The Court directed that the re-sentencing be conducted with due consideration of the principles of proportionality and deterrence. The Court also noted that the delay in the appeal process should be kept to a minimum in future proceedings to avoid any potential prejudice to the respondent.